Axley Brynelson, Attorneys at Law, by Mr. Michael J.
Westcott, appearing on behalf of
the Employer.

ARBITRATION AWARD

Local Union 1558 of Council #40, AFSCME, AFL-CIO and American National Red
Cross, Blood Services, Badger-Hawkeye Region are parties to a collective bargaining
agreement
which was in effect at all times relevant to this proceeding and which provides for the final
and
binding arbitration of certain disputes. The parties jointly requested that the Wisconsin
Employment Relations Commission appoint Arbitrator Thomas L. Yaeger from its staff to
resolve
the Seely and Seidl grievances. Hearing in the matter was held on September 19, 1995, in
Madison, Wisconsin. The parties filed post-hearing briefs by December 13, 1995.

ISSUES:

Seely Grievance:

Did the Employer violate the 1994-97 collective bargaining
agreement when it denied
Larry Seely a personal holiday on January 6, 1995, and January 9, 1995?

If so, what is the appropriate remedy?

Seidl Grievance:

Did Joint Exhibit No. 4, Fountain's January 10, 1995
memorandum violate the 1994-97
collective bargaining agreement? The parties stipulated that if the memorandum did not
violate
the collective bargaining agreement then Seidl's grievance is denied. If the policy did violate
the
collective bargaining agreement, then the grievance is sustained, and the remaining issue is
what
is the appropriate remedy.

PERTINENT CONTRACTUAL PROVISIONS:

ARTICLE 3 - MANAGEMENT

3.0 Except as may be expressly limited by this
Agreement, the Employer has
the sole right to plan, direct and control the working force, to schedule and assign
work to employees, to determine the means, methods and schedules of operation
for the continuance of its operations, to establish reasonable standards, to
determine qualifica-tions, and to maintain the efficiency of its employees. The
Employer also has the sole right to require employees to observe its reasonable
rules and reasonable regulations, to hire, lay off or relieve employees from duties
and to maintain order and to suspend, demote, discipline and discharge employees
for just cause. The Employer has the right to assign temporarily (sic) personnel
to any other duties at such times as natural and man-made safety and welfare or the
continuation beyond the duration of such disasters. The Employer shall determine
what constitutes a natural and man-made disaster as expressed in this Article.

. . .

ARTICLE 21 - VACATIONS

21.0 Any full-time employee on the payroll of the
Employer as of January 1 of
each year shall be entitled to a vacation with pay. The vacation shall be taken
during the twelve (12) month period following January 1 based upon the following
schedule:

less than 1 year of service - 5/12 of one day per month

1 to 4 years of continuous service - 10 days (75 hours
pay)

4 to 6 years of continuous service - 15 days
(112 1/2 hours pay)

over 6 years of continuous service - 20 days (150 hours
pay)

21.1 The Employer shall, with due regard to seniority
and consistent with its
needs, determine how many employees may be on vacation at any given time.
Vacations shall not be accumulated from one year to the next and are forfeited if
not taken when earned subject to Section 21.5. Furthermore, vacations shall not
be taken "back-to-back" in anniversary years without the Employer's written
permission.

. . .

ARTICLE 23 - HOLIDAYS

23.0 All employees covered by this Agreement shall be
entitled to the following
holidays and shall receive a normal day's pay for such day:

New Year's Day

Memorial
Day

Independence Day

Labor Day

Thanksgiving Day

Christmas Day

providing the employee works the last
scheduled day before, the first scheduled day
following the holiday and the holiday itself if scheduled, or is on authorized absence, in
order to
qualify for pay for that holiday. Should a holiday fall on a Saturday or Sunday, the previous
Friday or the following Monday shall be celebrated as the holiday. Employees shall also
receive
"personal day holidays" as determined by their length of continuous service as of
January 1 of
each year as follows:

6 months to 2 years of continuous service - 4 days

2 years to 3 years of continuous
service - 5 days

3 or more years of continuous
service - 6 days

Personal day holidays are to be arranged
between the employee and the Employer, but
may not be taken while the employee is on-call. Personal day holidays which are not taken
during
the year shall be lost.

. . .

BACKGROUND:

The subject grievances arose in the Employer's Product Management Department.
That
Department receives hospital orders for blood and blood products and is responsible for
filling
those orders. The Department operates on a seven day per week, twenty-four hour per day
schedule. Grievance CDM-95-01 arose when third shift employe Seely, on January 4,
1995,
asked Fountain, Assistant Director of Product Management, to have January 6 and 9
off as
personal holidays. Because the January work schedule had already been posted, these
requested
days off were considered to be requests for "short notice" personal days. Fountain had an
undisputed practice of asking the reasons for the request to evaluate whether he should allow
it
on such short notice. He was told by Seely that it was for personal reasons. Fountain told
Seely
that because the schedule had been posted, he does not force employes to cover personal day
requests. Further, he said he could not find anyone to work for Seely and that the only way
he
would grant the request was if Seely could find someone to replace himself. Seely did not
find
a replacement, was not granted the time off, and filed a grievance.

Prior to January 10, 1995, the Employer, in the Product Management
Department, also
had regularly permitted more than two employes to be off work on the same day on paid
personal
and vacation time, regardless of their work shifts. In contract negotiations leading up to the
subject 1994-97 collective bargaining agreement, the Union made bargaining proposals
relative
to additional premium payments for the double shifting of employes. The parties were not
able
to come to any agreement on those proposals. Subsequent to those negotiations on
January 10,
1995, Fountain distributed a memorandum to the Department staff on the subject of vacation
requests. That memorandum is quoted below.

DATE: January 10, 1994 (sic)

TO: Product Management Staff

FROM: Mike Fountain

SUBJECT: Vacation Requests

A topic that was brought up during contract negotiations was that
staff are sometimes forced
to work too many double shifts. Due to the increasing regulatory pressures, this does not
seem
like an unreasonable concern. In an effort to reduce these shifts and control overtime costs
simultaneously, the following guidelines will be followed for vacation requests for calendar
year
95:

1. A maximum of two staff may take annual leave or
personal days on the same day
regardless of shift, regardless of job duty. (example: If two milkrunners had the day off,
a second shift employee would not be able to take the same day off).

2. Any vacation request that requires another staff member
to cover your shift must be turned
in prior to typing and posting of the schedule. This allows the per-diem person to cover
the shift alleviating the need for frequent double shift assignments. This person cannot be
required and should not be expected to work shifts that are not on the schedule at the time
of posting. (This will not affect requests for 1/2 days.)

3. Vacation requests that require coverage cannot be
withdrawn once the schedule is posted.

It is strongly suggested that ALL staff use the
vacation calendar posted in the department when
choosing your leave requests. The total vacation days of all Product Management staff is
309 and
since there are 253 work days in 1995, this should not be a problem fitting in requests.
Senior
staff are urged to turn in leave slips early in the year so that less senior staff can choose their
vacation in a timely manner.

cc: David Greenfield

John Ridgley

Thereafter, on February 16, 1995, second shift employe Seidl put in for a
week
of vacation
from May 15 - 19, 1995. A more senior Department employe had also
requested to be on
vacation the same week. Seidl assumed his request had been approved, but on May 1,
he was told
by Fountain his request was denied because another more senior employe, Miller, had put in
to
be off work on a personal day on May 18, in the middle of Seidl's vacation week.
Fountain told
Seidl he would have to come back to work for one-half day on the 18th. Miller had made
his
request on April 27 so he could attend a grievance mediation session scheduled with the
Company.
Seidl offered to have Seely (third shift) work for him on the 18th and he would work for
Seely
on the 19th. Fountain told him there could be no shift swapping unless all the P.M.
employes
signed off. Seidl, after talking with Fountain and being told he would have to be at work on
the
18th, left on vacation and traveled to North Carolina on Friday, May 12. He
left North Carolina
to return to work on Wednesday, May 17. When Seidl returned to work from
North Carolina on
the 18th, he found that Fountain had scheduled someone to work his one-half day shift. He
told
Fountain he was outraged by this, but he received no explanation or apology from Fountain.
At
hearing, Fountain testified that was a scheduling mistake that was made when he posted the
overtime for the week in question before he received Miller's personal holiday request, and
he
forgot to take the employe off the schedule, but he never attempted to contact Seidl.

Vacation day requests are granted by the Employer on a seniority basis prior to
May 1, and
on a first come, first served basis after May 1. When Fountain and Seidl discussed
the matter,
Fountain told Seidl if he allowed him off it would be three employes off on the same day and
he
then would have to allow it in the future for everyone. Thus, he told Seidl the only way he
could
allow it for him would be if all Department employes agreed it was an exception and not
precedential. No such agreement ever occurred. The Union grieved Fountain's decision to
deny
a portion of Seidl's vacation.

The Union contends Fountain's memorandum violated Article 21.1 of the
contract and the
attendant binding past practice of allowing more than two employes off work on scheduled
leave
on any given day. It believes that practice was longstanding and mutually accepted by both
management and the Union. It further believes that there were no significant changes in the
underlying operation that necessitated the change reflected in Fountain's memorandum. It
points
to no change in the level of staffing or distribution of staff among shifts. The Union argues
the
change was motivated by the Employer's frustration with the Union's complaints in
negotiations
about double shifting employes, and a desire to get back at the Union. Finally, the Union
argues
that there is nothing in the bargaining history leading to the current collective bargaining
agreement that altered or terminated, as a part of the bargain, the then prevailing practice.

The Employer, on the other hand, argues that pursuant to Article 21.1 it has
the right to
determine the number of employes to be off work at any given time. It believes the only
way the
Union can establish that Fountain's January 10, 1995 memorandum violated the
collective
bargaining agreement is to show the policy reflected thereon does not give due regard to
seniority
or that it is not consistent with the Employer's needs. Regarding the issue of seniority, the
Employer insists that the testimony of witnesses was that seniority is the determining factor
in
which two staff members will be permitted off. Also, the Employer contends that there is no
record evidence that the policy was not consistent with its needs. Fountain's testimony
established
that the junior employe in the Department would be mandated to work double shifts, when
there
was a manpower shortage, regardless of shift; and they were coming to work fatigued and
with
raccoon eyes. This situation presented safety and operational concerns for management.
The
Employer attempted to address those concerns during negotiations, but the Union rejected its
proposed solution. It was only after negotiations concluded that the Employer exercised its
rights
under the contract.

The Employer also asserts a secondary reason existed for the promulgation of the
memorandum. It was to minimize the amount of overtime due to increased pressure to keep
costs
down. The Employer had employed a per diem employe, and by spreading out vacations
more
evenly throughout the year, the Department could increase the coverage of the per diem
employe
for employes on leave. This would then reduce its overtime costs.

The Employer concludes the two-day limit was reasonable, when considering it only
applied to whole day vacation and personal holidays off requests, not half days; and because
other
employes are likely to be off on sick leave, family and medical leave, bereavement leave, or
for
other unforeseeable reasons.

The Employer also argues that Article 21.1 only applies to vacation days, not
personal
days. Therefore, there is no contractual limitation upon the Employer's right to "schedule
and
assign work," as it pertains to personal days.

The Employer also insists that its past practice regarding how many employes could
be off
on any one day was that it was determined on a case-by-case basis. It does not follow that
because
it was handled on a case-by-case basis that management had lost its prerogative to change its
policy. Thus, it believes it is not thereby precluded from adopting the policy reflected in
Fountain's memorandum.

DISCUSSION:

The first grievance dealt with Fountain's decision to deny Seely's request for short
notice
personal days on January 6 and 9, 1995. The record evidence establishes that this
request was
received on January 4, 1995, prior to the January 10 Fountain memo. Clearly,
this grievance is
unaffected by the change in policy reflected in the January 10, 1995 memorandum.
The Union
President testified that there was no contractual provision requiring that the Employer grant
any
personal holiday request. He also testified that he was not aware, prior to January 1,
1995, that
any employe's short notice personal holiday request had been denied, but he acknowledged
he
would not have been present when the employe request would be made to the supervisor.

Fountain, on the other hand, testified that most personal holiday requests are made
prior
to the work schedule being posted, whereas short notice requests are made after the work
schedule
has been posted. He also testified that he had denied more than one half of the short notice
requests before January 10, 1995. His decision to grant or deny short notice requests
was based
upon the reason the time off was being requested. If it was an emergency he would
generally
grant the request. If it was not an emergency, he would deny it unless the employe could
find a
replacement because he would not force an employe to work overtime to accommodate
another
employe's short notice request.

Fountain asked Seely why he needed the time off. Seely would only respond that it
was
personal. Clearly, Seely was not obliged to give Fountain the details of his request for
personal
holiday, but by not doing so he deprived Fountain of the reason to force an employe to work
overtime to cover his absence. Seely was the only employe on the third shift. If he were
allowed
off, another employe would have to work it on short notice after the work schedule had been
posted. Fountain did not preclude Seely from seeking a volunteer on his own, whether he
told
him he could or not. The undersigned is persuaded it was not unreasonable for Fountain to
deny
Seely's request for short notice personal holidays on January 6 and 9. Seely did not
indicate it
was of an emergency nature and no reason was given why he was not able to request the
time off
before the schedule had been posted.

Also, there is no evidence that there was an existing practice of always granting
employe
requests for short notice personal holidays. Further, and most importantly,
Article 23.0 provides
that "Personal day holidays are to be arranged between the employee and the Employer."
Clearly,
Seely did not arrange with Fountain to be off, and Fountain's denial was not precluded by
this
language. The use of the term "arranged" implies mutual agreement between the Employer
and
employe. If that were not so, the language would only need state that the employe must
advise
the Employer when he/she was taking a personal day holiday off. Thus, there is nothing in
Article 23.0 that can reasonably lead one to conclude the Employer has no ability to
deny the
request. Fountain's explanation as to the policy he had followed prior to this incident and
also
applied to this situation was, on its face, reasonable. Thus, his denial of Seely's request did
not
violate the 1994-97 collective bargaining agreement.

Turning to the Seidl grievance, it is clear that the parties discussed the issue of
double
shifting of employes, and that they never came to an agreement as to what to do about it. It
is
also clear that the Employer never advised the Union during those negotiations that any
practices
that may have developed regarding vacation scheduling would be terminated with the
commencement of the new contract if they were not contractualized during the negotiations.
Further, the Employer does not dispute that it was its practice to allow more than two
employes
to be off work for personal holiday or vacation on any given day. The Employer argues that
Fountain's memo lays out the business reasons for the change, i.e., to reduce the number of
double shifts and control overtime costs.

There is extensive language contained in Article 21 - Vacations on
the general subject.
Relative to this issue it provides "The Employer shall, with due regard to seniority and
consistent
with its needs, determine how many employees may be on vacation at any given time." The
Employer acknowledges that prior to January 10, 1995, vacation requests were dealt
with on a
case-by-case basis. However, Fountain's memo removed the case-by-case review which took
into
account seniority and operational needs, and substituted in its place a maximum limit of two
(2)
employes on any date regardless of any other considerations. The Employer argues that its
prior
practice did not abrogate its right to change its policy.

There are, however, aspects of the new policy promulgated by Fountain which violate
Article 21. Even if the Employer is correct in its assertion that its prior practice of
allowing more
than two employes off at a time did not preclude a change in its policy, the new policy
generalizes
to all situations, regardless of the specific facts existing at the time. The undersigned
believes this
violates the implicit requirements of Article 21.1. Making a determination of
operational needs
at any given time, arguably can be read to mean all the time until further notice. However, I
do
not believe that to be a reasonable construction of the language. Rather, the more reasonable
construction is reflected in the Employer's prior policy of assessing each situation as it
arises.
This seems particularly so, when one considers that the Product Management Department
operates
on a seven day per week, twenty-four hour per day basis, utilizing multiple classifications of
employes to perform the necessary tasks. Obviously, the operational needs for the first shift
can
be considerably different from the second and third shifts regarding the type and amount of
work
to be performed from day to day, as well as the number and classification of employes
necessary
and available to complete it. Common sense, and the record evidence of shift assignments,
etc.,
indicate that the Employer's operational needs can vary from day to day, department to
department. Indeed, this policy was only applied to the Employer's Product Management
Department. The Fountain policy clearly made his job easier because he did not have to
assess
what his operational needs were going to be on any given day, but it also had the potential
effect
of depriving an employe of a contractual benefit without regard to operational needs, one
contractual standard against which employe requests are to be measured. The undersigned is
persuaded, after examining the facts and the language, that the Employer's case-by-case
handling
of employe vacation requests prior to January 10, 1995, was not a "practice," as
argued by the
Union, but rather the contractually mandated procedure. The Employer's stated objective of
reducing double shifts and its overtime costs are clearly appropriate operational objectives, so
long
as they can be accomplished without denying employes their contractual rights. In this case
the
contractual right is to have a vacation request reviewed in light of the operational needs when
the
vacation is to be taken. Fountain's January 10, 1995 memo clearly violated that
contractual
procedure.

The Employer also argued that, as noted in the memorandum, the new policy would
have
the effect of spreading out vacation and allowing for more coverage by the per diem
employe.
The fact is, however, that the per diem employe was not available to work the second or
third
shifts. Obviously, therefore, this rationale does not support the decision to make the
directive
applicable "regardless of shift" or classification. Further, Fountain merely "looking into"
expanding the coverage to the second and third shifts by the per diem employe did not
resolve the
contractual problem, and was insufficient to lead to a conclusion that this was a reasonable
assessment of management's operational needs at the time. Also, requiring employes to turn
in
their vacation requests prior to the posting of the schedule limits the sole third shift employe
to
taking vacation only when he/she can give sufficient notice to beat the work schedule
posting.
However, that requirement would not similarly impact other employes because on other shifts
there are more employees working and the opportunity exists that they could be off without
being
replaced. Thus, the policy denies the third shift employe contractual rights enjoyed by
others,
i.e., being able to submit vacation requests after the work schedule has been posted.

Finally, by co-mingling personal holiday and vacation days together, the policy has
permitted personal holiday requests, which have to be mutually arranged, to interfere with
vacation scheduling rights. There are not the contractual restrictions placed upon the
Employer
in reviewing personal holiday requests that exist for vacation requests. (See earlier
discussion of
Seely grievance.) In the instant case, the Employer permitted a more senior employe's
personal
holiday request to supersede a less senior employe's vacation week request. Nothing in the
contract suggests that management has the contractual right to devise a policy that has that
effect.
The Employer acknowledges in its argument that there will be employes off for reasons other
than
vacation, even when there are two employes on vacation. Why Fountain chose to include
personal
holidays and not other days was never explained. This is even more troubling when one
considers
personal holidays include the short notice personal holidays as well. Consequently, the
undersigned believes this aspect of the Fountain policy also contravenes contractual rights
guaranteed employes in Article 21.

As noted earlier, the parties stipulated that if it is determined that the Fountain
January 10,
1995 memo violated the collective bargaining agreement then the Seidl grievance is to be
sustained
and a remedy determined. In addition to the policy violating the contract, Fountain's
handling
of the Seidl grievance was egregious. In the first place, he had the authority to deny the
personal
holiday request for the 18th. His decision to grant the single day personal holiday request in
the
middle of Seidl's week long vacation was abusive. Additionally, to have someone already on
the
schedule who could have worked for Seidl and still blindly adhere to the policy and refuse
the day
to Seidl was equally abusive. Fountain's testimony that this was a scheduling error is
unpersuasive. Why was it not corrected in light of the controversy that was created by
denying
Seidl the 18th off? Why wasn't the additional employe told not to report after Fountain had
directed Seidl to also report for work on the 18th? Why didn't Fountain attempt to contact
Seidl
when he recognized the error and tell him he did not have to return on the 18th? The only
explanation can be that Fountain was incapable of making an exception to his own policy,
notwithstanding the hardship it had wrought on Seidl. I have only discussed this aspect of
the case
because I believe it is relevant to a determination of a remedy for the Employer's violation.
Because of Fountain's conduct and the hardship it caused Seidl--he was deprived of one week
of
uninterrupted vacation--I am ordering the Employer to grant Seidl an additional week of
vacation
to be taken any time in the next twelve (12) months without regard to any limits on the
number
of employes who can be off on vacation at any time, and over and above any vacation he is
entitled to by contract. If Seidl is no longer an employe, the Employer shall give him one
week
(five (5) days) pay at his rate of pay in effect during the period
May 15 - 19, 1995.

Based on the foregoing and the record as a whole, the undersigned enters the
following

AWARD

The Employer did not violate the 1994-97 collective bargaining agreement when it
denied
Larry Seely a short notice personal holiday on January 6, 1995, and January 9,
1995.

Joint Exhibit No. 4, Fountain's January 10, 1995 memorandum, violated the
1994-97
collective bargaining agreement. Therefore, the Seidl grievance is sustained, and the
Employer
shall grant him a week of vacation, in addition to any vacation he is currently, contractually
entitled to, and permit it to be taken by him within twelve months of the date of this Award,
without regard to any limits on the number of employes who can be off on vacation at any
time.
If Seidl is no longer employed, the Employer shall pay him five (5) days pay at his rate of
pay in
effect during the period May 15 - 19, 1995.